Daroga and Child Support Registrar (Child support)

[2018] AATA 3997

Daroga and Child Support Registrar (Child support) [2018] AATA 3997 (3 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014385

APPLICANT:  Mr Daroga

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member W Budiselik

DECISION DATE:  03 September 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Percentage of care - Change to the likely pattern of care - Existing percentages of care revoked - New percentage of care determinations made - Decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. The applicant (the father) is the parent of two girls (born 2007 and 2012) (the children). From 22 November 2016, the Department of Human Services – Child Support (the department) attributed the father with 17% of the children’s care and the mother with 83% of their care. On 6 January 2018, the mother advised the department the children’s care percentages had changed so she had 91% of the children’s care and the father had 9% of their care. On 8 February 2018, the department changed the children’s care percentages from 5 January 2018, to reflect the advice given by the mother. On 12 June 2018, an objections officer of the department affirmed the decision.

2. On 21 June 2018, the father lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the department’s decision. On 3 September 2018, the tribunal conducted a hearing into the application. The father participated in the hearing in person. The mother did not seek to be added to the hearing. Prior to the hearing the Department provided the tribunal and the father with a bundle of documents (folios 1 – 71) taken from the parents’ child support records. At hearing the father provided the tribunal with a bundle of documents (folios A1 – A6), which has been provided to the department.

ISSUES

1. The statutory provisions relevant to this review are contained in in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether there had been a change to the care pattern for the children such that the care percentages used in the child support assessment should be revoked.

CONSIDERATION

Was there a change to the pattern of care for the child such that the care percentages used in the child support assessment should be revoked?

1. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment or if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Generally the pattern of care is determined in accordance with the number of nights that a child is in a parent’s care in a care period.

3. Care percentages must be revoked and new care percentages determined if a person no longer has a care percentage of at least 14% and the Department is notified within a reasonable period (section 54G of the Assessment Act).

4. In this case, on 5 January 2018, the [relevant state court] affixed its seal to a minutes of proposed orders (the Orders) which among other things recorded:

   (5) Pending further hearing and until the further order and whilst the father works offshore the children:

   (a)Spend time with him when he is in [City 1] three out of four weekends from Friday with the mother to travel with the children from the conclusion of school and deliver them to the father at [a location in City 2] for the one occasion when the mother is not travelling to [City 1] and for the other 2 occasions at … [another town] … until 3 pm on Sunday …

5. The tribunal was satisfied if this arrangement was followed the calculated percentage of care would be less than 14%. Consequently, the existing determination (i.e. the determination in place until 5 January 2018) must be revoked and substituted with the percentages associated with the pattern of care set out in the Orders.

6. The father said the Orders were interim orders and that his former partner had sought to change the care percentage to achieve a financial advantage. The tribunal noted when the [relevant] Court issued its Order on 5 January 2018, it stated:

   In the event that neither party seeks to relist the matter by the close of Registry on 29 June 2018, the matter be referred to the presiding Magistrate in Chambers for a finalisation order to be made in accordance with paragraphs 3 to 10 inclusive of the Minutes of Proposed Orders handed up in Court on 5 January 2018, with such orders to be final orders.

7. The father said he has now sought to have the matter listed at the [Family Court] so a new set of Orders can be put in place.

8. The father said he has ceased working [overseas]. The tribunal explained to the father that if care is not occurring in the way prescribed by the Orders he can notify the department of a changed pattern of care. He said he had attempted to tell the department the care arrangement had changed but that the department said it would not record a care change until his matter at the tribunal was dealt with.

9. The tribunal reviewed the department’s file notes and it could not identify in the papers provided a record of the father informing the department his pattern of care had changed as a consequence of his new shift arrangements. The tribunal pointed out the department’s records showed his contacts with the department in relation to care were solely about his disagreement with the decision to record a changed pattern of care from 5 January 2018.

10. The father said in his opinion the department’s file notes do not reflect all of the discussion that occurred at the time. The father said he intended to notify the department at the end of the tribunal hearing that his working arrangements had changed and the pattern of care had also changed.

11. The tribunal is satisfied there was a change of care from 5 January 2018, such that the care percentages attributed to the parents should be revoked on 4 January 2018, and a new determination issued on 5 January 2018.

DECISION

The decision under review is affirmed.